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338 F.

3d 348

John Rene RODRIGUEZ; Rayshawn Ward, PlaintiffsAppellees,


v.
SMITHFIELD PACKING COMPANY, INCORPORATED;
Daniel M. Priest, Defendants-Appellants, and
Lasaven Richardson, in his individual and official capacities as
a Bladen County Deputy Sheriff; Terry C. Davis, in his
individual and official capacities as a Bladen County Deputy
Sheriff; Bryson Robinson, in his individual and official
capacities as a Bladen County Deputy Sheriff; Gene Lambert,
in his individual and official capacities as a Bladen County
Deputy Sheriff; Bladen County Sheriff's Department; Peerless
Insurance Company; The Insurance Company of North
America, Defendants.
John Rene Rodriguez; Rayshawn Ward, Plaintiffs-Appellants,
v.
Smithfield Packing Company, Incorporated; Daniel M. Priest,
Defendants-Appellees, and
Lasaven Richardson, in his individual and official capacities as
a Bladen County Deputy Sheriff; Terry C. Davis, in his
individual and official capacities as a Bladen County Deputy
Sheriff; Bryson Robinson, in his individual and official
capacities as a Bladen County Deputy Sheriff; Gene Lambert,
in his individual and official capacities as a Bladen County
Deputy Sheriff; Bladen County Sheriff's Department; Peerless
Insurance Company; The Insurance Company of North
America, Defendants.
John Rene Rodriguez; Rayshawn Ward, Plaintiffs-Appellees,
v.
Daniel M. Priest; Lasaven Richardson, in his individual and
official capacities as a Bladen County Deputy Sheriff; Terry C.
Davis, in his individual and official capacities as a Bladen
County Deputy Sheriff; Bryson Robinson, in his individual and

official capacities as a Bladen County Deputy Sheriff; Gene


Lambert, in his individual and official capacities as a Bladen
County Deputy Sheriff; Bladen County Sheriff's Department,
Defendants-Appellants,
and [PG] Smithfield Packing Company, Incorporated; Peerless
Insurance Company Surety; The Insurance Company of North
America, Defendants.
No. 02-1835.
No. 02-1893.
No. 02-2024.

United States Court of Appeals, Fourth Circuit.


Argued: June 3, 2003.
Decided: July 30, 2003.

ARGUED: Earle Duncan Getchell, Jr., McGUIREWOODS, L.L.P.,


Richmond, Virginia; Andrew John Hanley, CROSSLEY, McINTOSH,
PRIOR & COLLIER, Wilmington, North Carolina, for Appellants.
Michael Griffin Okun, PATTERSON, HARKAVY & LAWRENCE,
L.L.P., Raleigh, North Carolina, for Appellees.
ON BRIEF: Jeffrey S. Shapiro, Jonathan P. Harmon, McGUIREWOODS,
L.L.P., Richmond, Virginia, for Appellants.
Ann E. Groninger, PATTERSON, HARKAVY & LAWRENCE, L.L.P.,
Raleigh, North Carolina, for Appellees.
Before WILKINSON and MOTZ, Circuit Judges, and Robert R.
BEEZER, Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Affirmed in part and reversed in part by published opinion. Judge
Wilkinson wrote the opinion, in which Judge Diana Gribbon Motz and
Senior Judge Beezer joined.
OPINION

WILKINSON, Circuit Judge:

Plaintiffs John Rodriguez and Rayshawn Ward filed suit against Daniel Priest,
Smithfield Packing Company, and several members of the Bladen County
Sheriff's Department, alleging that they were unlawfully arrested in the wake of
a unionization election at a Smithfield Packing facility. After dismissing the
Sheriff's Department defendants and some of the claims against Smithfield
Packing and Priest, the district court allowed the case to go to trial. The jury
found both Priest and Smithfield Packing liable for violating plaintiffs'
constitutional rights. Because plaintiffs released Priest and the Sheriff's
Department defendants from liability, and because Priest's actions did not
constitute official policymaking on behalf of Smithfield Packing, we affirm in
part and reverse in part. To do otherwise would transform a private company
into a municipal corporation without sufficient justification.

I.
2

Smithfield Packing operates a pork processing plant in Tar Heel, North


Carolina, which is located in Bladen County. Defendant Daniel Priest was
Chief of Security at the Tar Heel plant. He had been responsible for setting up
the security program at the Tar Heel facility, including hiring the security
guards and developing security procedures. On a day to day basis, he was
charged with overseeing the plant's twenty-four full-time security guards and
protecting Smithfield's employees and assets.

Priest was also affiliated with the Bladen County Sheriff's Department as an
auxiliary deputy sheriff a sworn deputy sheriff who is not on the payroll and
works at the discretion of the County Sheriff. As an auxiliary deputy sheriff,
Priest had the same legal authority as a full-time deputy, including the power to
arrest. The County Sheriff also charged Priest with handling many law
enforcement functions on behalf of the Sheriff's Department at the Tar Heel
plant, including criminal investigations and the service of civil papers and
criminal warrants. This freed up the full-time deputies to handle incidents
elsewhere in Bladen County. Priest also performed special assignments for the
Sheriff's Department that were unrelated to Smithfield Packing. Priest was at all
times, however, in a subordinate role within the Sheriff's Department: he
reported to the County Sheriff, was subject to Sheriff's Department regulations,
and had no managerial authority over other deputies when they were dispatched
to the Tar Heel plant (as they were, on average, three or four times a week
when Priest was unavailable).

In 1997, after previous efforts to unionize the workers at the Tar Heel plant had
failed, the United Food and Commercial Workers Union began a new
organization campaign at the facility. John Rodriguez was an organizer for the
union who worked on the Smithfield Packing organization campaign.
Rayshawn Ward was a Smithfield employee who served as an election
observer on behalf of the union.

At the conclusion of the unionization campaign, the NLRB conducted an


election at the Tar Heel Plant in August 1997. On August 22, 1997, the votes
were counted in the employee cafeteria. Priest requested the assistance of the
Sheriff's Department with security during the count, and the Sheriff sent
between eight and ten deputies to the plant. In the cafeteria, there were between
100 and 150 supporters of Smithfield management and between fifteen and
twenty representatives of the union. Both Ward and Rodriguez were in the
cafeteria during the vote count.

After the votes were counted, it was announced that the union had lost the
election. The union representatives were ordered to leave the premises, and
they began to walk out. At this point, trouble broke out. While the parties
disagree about which side was at fault for the ensuing melee, the facts relevant
to our decision are clear. Priest sprayed Ward with pepper spray, kneed him in
the back as Ward lay on the ground, handcuffed him, and arrested him. A fulltime sheriff's deputy handcuffed Rodriguez and arrested him. Both Ward and
Rodriguez were then taken to jail on a series of misdemeanor charges,
apparently according to Priest's instructions.1 Ward was charged with two
counts of assault, one count of property destruction, and one count of inciting a
riot, and Rodriguez was charged with two counts of assault on government
officials.

Plaintiffs were represented on their criminal charges by a union attorney, J.


Michael McGuinness. McGuinness met with the County Sheriff and suggested
that plaintiffs sign a release of civil liability in exchange for a delayed
prosecution agreement. McGuinness then met with an Assistant District
Attorney and made the same proposal. McGuinness subsequently drafted the
releases himself. The release agreements read, in relevant part:

I hereby fully release and forever discharge the Bladen County Sheriff's
Department, including but not limited to Sheriff Steve Bunn [and several named
sheriff's deputies] ... from all existing claims which I may have against [them]
for alleged conduct that occurred on or about August 22, 1997....

I will not initiate any lawsuit, complaint or legal claim against any of the
Releasees in any federal, state or any other court or other tribunal for any
conduct that occurred on or about August 22, 1997.

10

Ward signed the release on September 29, 1997, and the prosecution against
him was suspended on the same day with the understanding that all charges
would be dropped if Ward did not violate any North Carolina laws for the
following twelve months. Rodriguez signed the release on October 7, 1997, and
his prosecution was then suspended under the same conditions that Ward
received.

11

In August 2000, Ward and Rodriguez filed suit in federal court against the
Bladen County Sheriff's Department, the County Sheriff, and several individual
sheriff's deputies ("the Sheriff's Department defendants"), as well as Smithfield
Packing and Priest. Ward and Rodriguez claimed that defendants had violated
the First Amendment, the Fourth Amendment, the Fourteenth Amendment, and
42 U.S.C. 1981. Ward and Rodriguez also brought several state law claims,
including false arrest, malicious prosecution, and assault and battery. The
district court granted summary judgment to the Sheriff's Department defendants
on all counts. The district court also granted summary judgment to Priest and
Smithfield on all counts except plaintiffs' Fourth Amendment and Equal
Protection Clause claims.2

12

The case then proceeded to trial. After evidence had been presented, the district
court granted judgment as a matter of law to the plaintiffs under Fed.R.Civ.P.
50 on two issues, holding that Priest and Smithfield Packing had acted under
color of state law on August 22, and that Priest was a final policymaker for
Smithfield under 42 U.S.C. 1983. The case was sent to the jury, which found
that Priest had violated plaintiffs' constitutional rights. The jury awarded
Rodriguez $25,000 in compensatory damages and $130,000 in punitive
damages, and awarded Ward $75,000 in compensatory damages and $525,000
in punitive damages. The district court denied defendants' post-trial motions for
judgment as a matter of law or a new trial. This appeal ensued.

II.
13

Ward and Rodriguez appeal the district court's grant of summary judgment to
the Sheriff's Department defendants. They argue that the release-dismissal
agreements are unenforceable under federal law and cannot support summary
judgment on those claims.

14

We review the district court's grant of summary judgment on this score de


novo. Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). In deciding whether a
genuine issue of material fact exists, "the evidence of the nonmoving party is to
be believed and all justifiable inferences must be drawn in its favor." Id.
(citation omitted).

15

In Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405
(1987), the Supreme Court held that "a court properly may enforce an
agreement in which a criminal defendant releases his right to file an action
under 42 U.S.C. 1983 in return for a prosecutor's dismissal of pending
criminal charges." Id. at 389, 397, 107 S.Ct. 1187. Justice O'Connor, whose
fifth vote was dispositive, observed in her concurrence that in order to escape
liability under a release-dismissal agreement, "[t]he defendants in a 1983 suit
... must prove" that a release of liability "was voluntarily made, not the product
of prosecutorial overreaching, and in the public interest." Id. at 401, 107 S.Ct.
1187 (O'Connor, J., concurring in part and concurring in the judgment)
(emphasis in original); see also id. at 398, 107 S.Ct. 1187 (majority opinion).
Of particular interest in this case-by-case inquiry are the "knowledge and
experience of the criminal defendant," the "nature of the criminal charges," the
"existence of a legitimate criminal justice objective for obtaining the release,"
"whether the defendant was counseled," and whether the agreement was
"executed under judicial supervision." Id. at 401-02, 107 S.Ct. 1187 (O'Connor,
J.).

16

The circumstances surrounding the execution of plaintiffs' release-dismissal


agreements lead us to conclude that the agreements must be enforced in this
case. Most important, plaintiffs conceived, initiated, and proposed the
arrangement; it was not presented to them immediately after their arrest by an
overreaching prosecutor who knew that civil liability might arise from the
underlying events. Furthermore, plaintiffs drafted the release document, giving
themselves first opportunity to shape its scope and effect. They were
represented by counsel and have not challenged his competency or experience.
They had more than a month to decide whether or not to actually proceed with
the agreement. And the likelihood that plaintiffs were unduly coerced is
particularly small, since they faced only misdemeanor charges. See id. at 401,
107 S.Ct. 1187 ("[T]he greater the charge, the greater the coercive effect.").3
We therefore hold that the release-dismissal agreement was enforceable, and
the Sheriff's Department defendants were properly dismissed from this case.4

III.
17

For their part, defendants argue that Priest should not have been found liable for

violating plaintiffs' constitutional rights. They contend that the district court
should instead have granted Priest judgment as a matter of law.
18

We review de novo the district court's denial of Priest's motion for judgment as
a matter of law under Fed.R.Civ.P. 50(b). Austin v. Paramount Parks, Inc., 195
F.3d 715, 727 (4th Cir.1999). In doing so, we view the evidence in the light
most favorable to plaintiffs, and draw all reasonable inferences in their favor.
Id.

19

In order to render Priest liable under 42 U.S.C. 1983, plaintiffs must show
that he was acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ("`[T]he party
charged with the deprivation [of federally secured rights] must be a person who
may fairly be said to be a state actor.'"). The Fourth Circuit has held that
"`[o]ne of the paradigmatic means by which a private party becomes subject to
section 1983 is through the government's conferral upon that party of what is,
at core, sovereign power'" a power, in other words, that is "`traditionally the
exclusive prerogative of the State.'" Goldstein v. Chestnut Ridge Volunteer Fire
Co., 218 F.3d 337, 342 (4th Cir.2000) (citation omitted). "[T]he ultimate
resolution of whether an actor was... functioning under color of law is a
question of law for the court." Id. at 344 n. 7.

20

In this case, Priest was an auxiliary deputy sheriff invested with the full
panoply of powers afforded to full-time deputies, including the power to arrest.
The County Sheriff had given Priest primary responsibility in his role as
auxiliary deputy sheriff for a broad range of law enforcement work at the plant,
from conducting criminal investigations and making arrests to serving civil and
criminal papers. On August 22, Priest was working in concert with the Sheriff's
Department to provide security in a potentially volatile situation. He had a
deputy sheriff badge clipped on his belt, a sheriff's department radio, handcuffs,
pepper spray, and a gun. And he testified that he told Ward "Sheriff's
Department, you are under arrest," handcuffed him, and enlisted another deputy
to help him take Ward out of the building and to the waiting police car. All of
this was the natural result of Priest's official role within Bladen County, in
which he was expected to perform law enforcement functions at the Tar Heel
plant on behalf of the Sheriff's Department.

21

In light of these facts, we are compelled to find that Priest was acting under
color of state law when making arrests at the Tar Heel facility on August 22. It
is beyond dispute that the police function is "one of the basic functions of
government," a "most fundamental obligation of government to its
constituency." Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d

287 (1978). And an arrest is "the function most commonly associated with the
police." Id. at 298, 98 S.Ct. 1067. It would be hard to imagine, in other words, a
more prototypically representative government function than Priest's use of his
official capacity to effectuate the arrest of Ward and Rodriguez.
22

The problem for plaintiffs, however, is that once we find that Priest was acting
under color of state law when making the arrests, he is covered by the release
and cannot be sued by Ward or Rodriguez. The agreements plaintiffs signed
"fully release and forever discharge the Bladen County Sheriff's Department,
including but not limited to [the County Sheriff and several named deputies]."
Since plaintiffs were responsible for drafting this agreement, we must construe
its terms against them. Because Priest was acting as an auxiliary deputy sheriff
when making the arrests, and because the agreement evinces the unmistakable
intent to release all agents of the Bladen County Sheriff's Department, we hold
that Priest was covered by the release. He is therefore not subject to suit for the
actions he took on August 22.

IV.
23

Defendants also argue that Smithfield Packing should not have been found
liable for violation of plaintiffs' constitutional rights. We review de novo the
district court's decision to deny Smithfield Packing's motion for judgment as a
matter of law. Paramount Parks, 195 F.3d at 727.

24

"[T]he principles of 1983 municipal liability ... apply equally to a private


corporation that employs special police officers." Id. at 727-28. This means that
"a private corporation is not liable under 1983 for torts committed by special
police officers when such liability is predicated solely upon a theory of
respondeat superior." Id. at 728. Rather, private corporations can only be held
liable under 1983 if "an official policy or custom of the corporation causes
the alleged deprivation of federal rights." Id. While" `official policy' often
refers to formal rules or understandings," Pembaur v. City of Cincinnati, 475
U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), corporate liability may
also "be imposed for a single decision by [corporate] policymakers under
appropriate circumstances." Id. Plaintiffs argue that, given his position as Chief
of Security, Priest was the final policymaker for Smithfield Packing with
respect to all arrests and investigations at the Tar Heel plant. They point to
evidence that Smithfield Packing made Priest the manager of security at the
Tar Heel plant, and contend that his decision to arrest Ward and Rodriguez
must therefore be imputed to Smithfield Packing for the purposes of 1983
liability.

25

What plaintiffs ignore, however, is that Smithfield Packing could not have
delegated any policymaking authority over arrests to Priest, because the
company had no authority over county law enforcement policies that it could
have delegated. Instead, because the arrest of Ward and Rodriguez was
explicitly executed under Priest's authority as a sheriff's deputy seeking to
enforce North Carolina state law, it was a decision which flowed from the
authority delegated to Priest by the County Sheriff. And that authority was,
naturally enough, constrained at all times by the County Sheriff's oversight;
plaintiffs do not argue that the Sheriff had anything less than direct control over
Priest's activities as an auxiliary deputy sheriff. In his capacity as auxiliary
deputy sheriff, in other words, Priest reported to the County Sheriff, not to
Smithfield Packing. The testimony of both Priest and the County Sheriff make
this abundantly clear. Priest stated that he "work[ed] at the discretion of the
Sheriff," and the Sheriff acknowledged that Priest reported to him "with respect
to work that [Priest] did in helping out the Sheriff's Department" and could not
"ignore or ... override any of [the Sheriff's] instructions with respect to
providing law enforcement at the Tar Heel facility." Any relevant policy for
Monell purposes with respect to arrests anywhere in Bladen County was thus
set by the County Sheriff, not Priest, and any status as a policymaker on that
score was likewise defined by the Sheriff's Department's internal organization
structure.5

26

We do not, of course, hold that a private corporation may never be liable under
1983 for the actions of a sheriff's deputy hired as a security guard. See
Paramount Parks, 195 F.3d at 727-28. When a security guard is acting as a
sheriff's deputy exercising the quintessential state function of arrest, however,
the assumption is that state policies and state training would be guiding the
exercise of that authority, at least in the absence of evidence that the private
entity sought to supplant state policies or training procedures with policies of its
own. And while plaintiffs argue the presence of anti-union animus on the part
of the company, there is insufficient evidence to support their view that any
such policy displaced the Sheriff's procedures with respect to the arrest of one
(or at most two, if one were to count Rodriguez) of approximately twenty union
supporters at the meeting.

27

In short, we see no evidence that "an official policy or custom of the


corporation cause[d] the alleged deprivation of federal rights." Id. at 728. We
therefore hold that the district court erred by denying Smithfield Packing's
motion for judgment as a matter of law and reverse its judgment on that score.

V.

28

In the final analysis, we cannot accept plaintiffs' efforts to avoid the


consequences of their state action argument and the consequences of having
signed the release. Plaintiffs have understandably argued that Priest was a state
actor. We agree, but plaintiffs must then accept the legal consequences that
flow from that status. The release applied to Priest because he is an auxiliary
deputy sheriff, and the policies that guided his actions in carrying out his
sheriff's duties are also presumptively those of the state. For this reason, the
judgment against defendants cannot stand.

29

We affirm the dismissal of the claims against the Sheriff's Department


defendants, affirm the district court's decision not to grant attorney's fees to the
Sheriff's Department defendants, hold that judgment as a matter of law should
have been granted to both Priest and Smithfield Packing on all issues related to
liability, and remand the case for further proceedings consistent with this
opinion.
AFFIRMED IN PART AND REVERSED IN PART

Notes:
1

Although this point is contested, we assume for the purposes of this opinion
that Priest was responsible for the arrest of both Ward and Rodriguez

The district court dismissed all state law claims against Smithfield on the
ground that they were either time-barred under North Carolina law or
preempted under the NLRA. Plaintiffs do not challenge these rulings on appeal

Plaintiffs also argue that the release, despite its express language, was not
supported by consideration sufficient to render it enforceable, because the
release was not executed in return for the dismissal agreementSee Maynard v.
Durham & S. Ry. Co., 365 U.S. 160, 163, 81 S.Ct. 561, 5 L.Ed.2d 486 (1961).
The evidence, however, shows that plaintiffs proposed the release-dismissal
agreement to both the Sheriff and the prosecutor. At the least, a Sheriff's
agreement to support the dismissal of criminal charges constitutes adequate
consideration for the release in this case. Moreover, whatever the level of
prosecutorial involvement, the release serves the public interest by sparing
Bladen County the expense of future civil litigation. See Town of Newton, 480
U.S. at 399-400, 107 S.Ct. 1187 (O'Connor, J., concurring in part and
concurring in the judgment) ("Sparing the local community the expense of
litigation associated with some minor crimes for which there is little or no
public interest in prosecution may be a legitimate objective of a release-

dismissal agreement.").
4

While we reject the plaintiffs' appeal on this score, we deny the Sheriff's
Department defendants' request for attorney's fees under 42 U.S.C. 1988.
Plaintiffs' argument was not "frivolous, unreasonable, or without
foundation."DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir.1999) (citation
omitted). But since "in the ordinary course, a prevailing party is entitled to an
award of costs," Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.1994), we hold
that costs must be awarded to the Sheriff's Department defendants. Plaintiffs
have suggested no reason to depart from this "presumption in favor of an award
of costs to the prevailing party." Id.

Plaintiffs' argument in the alternative that Priest was a joint actor with the
Sheriff's Department is similarly unavailingSee Dennis v. Sparks, 449 U.S. 24,
27-29, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Even assuming arguendo that he
was a joint actor, Priest would still have to be found to be a policymaker in
order to impute liability to Smithfield Packing under 1983. And of course the
release-dismissal agreement would still absolve Priest himself of legal liability
for the August 22 events.

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